Regulatory Actions to Address Affordability of Coronavirus-Related Services

The federal government and many governors and state insurance regulators have taken recent actions in response to (or anticipation of) the spread of the coronavirus across communities in the United States. This document identifies federal and known state actions taken to address affordability concerns for coronavirus-related items and services. Many of the state actions predate the pending passage of H.R. 6201, which will require commercial insurers and group health plans to cover coronavirus (COVID-19) testing and provider office visits at no cost-sharing to enrollees.

States’ actions also address other topics insurers can take to facilitate testing and treatment and mitigate community spread, such as meeting and exceeding network adequacy standards, offering telehealth and allowing early prescription refills. As far as national state regulatory response, the National Association of Insurance Commissioners (NAIC) is conducting the public portion of a special session on state responses to COVID-19 on March 20, 2020, starting at 11 a.m. ET, via virtual meeting.

1. Alabama: Requesting cost-sharing waivers for testing and an in-network provider office, urgent care or emergency room visit when testing. See here for more information.
2. Alaska: Mandatory waiver of cost-sharing for testing for respiratory illness and requested cost-sharing waivers for in- and out-of-network office visits, emergency room and urgent care visits with the testing. See here for more information.
3. California: Mandatory waiver of cost-sharing for all medically necessary screening and testing for COVID-19, including hospital (including emergency department), urgent care visits and provider office visits. Click here to view the letter from the Department of Managed Health Care. Visit this link to see the California Department of Insurance bulletin.
4. Colorado: Mandatory waiver of cost-sharing for testing and in-network office visits, urgent care or emergency room visits when seeking testing. The waiver applies to out-of-network visits if the in-network provider cannot perform testing. See here for more information.
5. Delaware: Reminding insurers that testing is an essential health benefit and encouraging insurers to waive cost-sharing for testing and in-person and telemedicine visits. See here for more information.
6. Georgia: Encouraging insurers to consider options to reduce potential barriers of cost-sharing for testing and treatment, and requesting insurers to waive cost-sharing for an in-network office, urgent care and emergency room visit when testing. See here for more information.
7. Illinois: Encourages health insurance issuers to consider options to reduce the barriers of cost-sharing for testing and treatment of COVID-19. See here for more information.
8. Maryland: Requires carriers to authorize payment to pharmacies for at least a 30-day supply of any prescription medication, regardless of any time restrictions that would otherwise apply, and requests carriers to waive cost-sharing for in-network provider office visits and urgent care center visits that result in testing, and to waive the cost-sharing for an emergency department visit with testing for COVID-19. Emergency regulations are forthcoming. See here for more information.
9. Massachusetts: Communicating expectations for carriers to waive cost-sharing for testing and medically necessary treatment, counseling and vaccinations at in-network office, urgent care or emergency rooms, and at out-of-network facilities when access to urgent testing or treatment is unavailable. See here for more information.
   
   The state’s health insurance exchange also announced a special enrollment period specifically in response to the outbreak through April 25.
10. Mississippi: Indicating the department has confirmed that the major carriers in the state will waive cost-sharing for medically necessary testing. See here for more information.
11. Missouri: Asks health carriers to waive any cost-sharing for testing, including in-network provider office visits, urgent care center visits and emergency room visits when testing. See here for more information.
12. Nevada: Emergency regulations requiring insurers to waive cost-sharing for testing and an office, urgent care or emergency room visit when seeking testing and cover costs of any future vaccine. See here for more information.
13. New Hampshire: Mandatory waiver of cost-sharing of initial provider visit for testing for those who meet Centers for Disease Control and Prevention (CDC) criteria at office, urgent care or emergency room visit, and at out-of-network facilities if in-network providers are unavailable to conduct testing.
14. New Jersey: Advising carriers to waive cost-sharing for any emergency room visit, and any in-network office or urgent care visit when seeking testing and to waive cost-sharing for testing. See here for more information.
15. New Mexico: Emergency rules issued requiring cost-sharing waivers for testing and services related to COVID-19 and order requiring enrollee notification regarding COVID-19-related benefits. See here for more information.
16. New York: Mandatory waiver of cost-sharing for in-network coronavirus tests; emergency rules regarding the same issued on March 13. See here for more information.
    
    The Department of Financial Services issued an Insurance Circular Letter No. 6 to remind insurers of their obligations to cover services delivered via telehealth in the manner such services would be covered otherwise under a comprehensive insurance policy or contract. The state announced plans to issue emergency regulations during the state of emergency for COVID-19 that would require insurers that provide comprehensive coverage for hospital, surgical or medical care to impose no copayments, coinsurance or annual deductibles for an in-network service delivered via telehealth when such service would have been covered under the policy if it had been delivered in person. See here for more information.
17. Pennsylvania: Announcing many insurers will cover medically appropriate testing without any copays, deductibles or cost-sharing and that treatment is also covered but may include a copay. See here for more information.
18. Tennessee: Requesting carriers to waive cost-sharing for testing and in-network office, urgent care and any emergency room visits associated with testing. See here for more information.
19. Texas: Encourages planning for COVID-19 spread; no directive related to increasing affordability. See here for more information.
20. Washington: Mandatory waiver of cost-sharing for any consumer requiring testing and waiver of prior authorization for testing or treatment of COVID-19. Insurers must also allow one-time early refill for prescription drugs. The directive specifies it applies to short-term, limited duration policies. See here for more information.
    
    The state’s health insurance exchange also announced a special enrollment period through April 8 specifically in response to the outbreak.
21. West Virginia: Requesting insurers waive cost-sharing for testing and for an in-network office visit, in-network urgent care and emergency room visit when testing. See here for more information.
22. Wisconsin: Requesting insurers waive cost-sharing for testing and for an in-network office visit, in-network urgent care and emergency room visit when testing. See here for more information.

This list is expanding rapidly, so companies should be on alert for additional directives.

Federal Executive Agency Response

Multiple agencies including the Centers for Medicare & Medicaid Services (CMS) and the Internal Revenue Service (IRS) have taken several actions to respond to the outbreak.

The week of March 2, CMS announced the provision of two billing codes for the CDC test and lab-developed tests by private companies. See here for more information. CMS has announced Medicare’s initial payment for the tests at approximately $36 for the CDC test and about $51 for the non-CDC tests.

With respect to non-grandfathered individual market and small group insurance coverage, CMS released FAQs on March 13 reiterating federal rules that apply to the diagnosis and treatment of COVID-19. The FAQs clarify which COVID-19-related services, including testing, isolation/quarantine and vaccination, are generally currently covered as Essential Health Benefits (EHBs) in these markets. See here for more information.

Once a coronavirus vaccine is available, non-grandfathered group health plans and individual and group health insurance coverage must cover vaccinations at no cost-sharing if the Advisory Committee on Immunization Practices (ACIP) of the CDC recommends it, beginning with the plan year that is 12 months after the ACIP issues the recommendation. Many insurers will likely cover the vaccine at no cost-sharing earlier.

With respect to Medicaid and the Children’s Health Insurance Program (CHIP), CMS clarified that Medicaid agencies can waive any cost-sharing for outpatient items or services, including testing that would otherwise apply by submitting a state plan amendment (SPA). If a state desires to target the cost-sharing waiver to only COVID-19 related testing or treatment, CMS indicates the state will need to submit a Sec. 1115 waiver. See here for a list of FAQs.

Further, the IRS clarified in a guidance document that health savings account (HSA)-qualified high-deductible health plans will not cause enrollees to violate HSA eligibility rules if the plans cover COVID-19 testing or treatment prior to the deductible or with a smaller deductible than the required minimum deductible under HSA rules. The action is significant because in general, only preventive care can be covered prior to the deductible. See here for more information.

Federal Legislation

In the early morning hours of March 14, the House passed a second emergency supplemental appropriations bill (H.R. 6201) that would address increasing access and affordability for COVID-19 testing and treatment. The Senate has deferred a scheduled recess period to pass the measure (with potential modifications) this week.

Regarding group health plans and group or individual market health insurance coverage, under H.R. 6201, such plans or policies must cover, with no cost-sharing or prior authorization or other medical management requirements, COVID-19 testing and provider office visits, urgent care visits or emergency room visits that result in an order for testing. Forthcoming agency guidance authorized by this provision may clarify whether this requirement extends to services obtained from out-of-network facilities or providers.

Regarding Medicare Advantage plans, H.R. 6201 similarly requires plans to cover COVID-19 testing and related visits with no cost-sharing or prior authorization or other medical management requirements.

Under Medicaid, the bill requires states to cover coronavirus testing, including the cost of a provider visit, to Medicaid recipients without cost-sharing. States could further cover tests for the uninsured through their Medicaid programs at 100% federal reimbursement. H.R. 6201 also provides paid emergency leave, enhanced unemployment benefits, food assistance, health worker protections and relief to small businesses. To complement the special Medicaid coverage for the uninsured and as a backstop in the event a state Medicaid program does not extend free COVID-19-related testing to the uninsured, H.R. 6201 also allocates $1 billion for the National Disaster Medical System to reimburse the costs of COVID-19 diagnostic testing and services provided to the uninsured.

The $1 billion funding stream appears to be in addition to the funding provided through the first COVID-19 supplemental funding measure passed the week of March 2 in the House and Senate (H.R. 6074), which allocated $300 million for the Department of Health and Human Services (HHS) Public Health and Social Services Emergency Fund to address both testing and treatment. See here for more information.

Notably, H.R. 6074 provides:

• “That the Secretary of Health and Human Services shall purchase vaccines developed using funds made available under this heading in this Act to respond to an outbreak or pandemic related to coronavirus in quantities determined by the Secretary to be adequate to address the public health need”
• “That products purchased by the Federal government with funds made available under this heading, including vaccines, therapeutics, and diagnostics, shall be purchased in accordance with Federal Acquisition Regulation guidance on fair and reasonable pricing”
• “That the Secretary may take such measures authorized under current law to ensure that vaccines, therapeutics, and diagnostics developed from funds provided in this Act will be affordable in the commercial market”

Voluntary Insurer Responses

Finally, both national and regional insurers are taking voluntary action to reduce cost-sharing for consumers. In early March, America’s Health Insurance Plans (AHIP) released a press statement indicating its members would “cover needed diagnostic testing when ordered by a physician” and “take action to ease network, referral, and prior authorization requirements and/or waive patient cost-sharing.”

A few examples of national insurers taking voluntary actions include:

1. On March 5, 2020, Cigna announced it will waive cost- sharing for COVID-19 testing for fully insured plans.
2. Anthem also announced on March 6 it would provide coverage of the test at no cost-sharing and without prior authorization.
3. CVS Health/Aetna announced on March 6 it would waive co-pays for testing and offer zero co-pay telemedicine visits for any reason.

Several other regional insurers also made similar announcements in the last few weeks. These insurers’ voluntary actions are in anticipation of the broader availability and ordering of lab-developed tests by companies and academic medical centers.

As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center provides information to help you understand and assess the legal, regulatory and commercial implications of COVID-19.